1. Where a defendant requests the trial court to admit evidence under the provisions of a
particular statute, the defendant may not complain on appeal that the designated statutory
provisions were inapplicable to the proffered evidence.

2. For evidence to be relevant, the asserted facts must have some material or logical
connection to the inference that is intended to be established by those facts.

3. The statutes defining the crimes of aggravated criminal sodomy, K.S.A. 21-3506, and
aggravated indecent liberties with a child, K.S.A. 21-3504, establish two degrees of the
offenses when the victim is less than 14 years of age: one is a Kansas Sentencing
Guidelines Act nondrug person felony, and the other is an off-grid felony. The factor
which determines which degree of the crime has been committed is whether the offender
was age 18 years or older when the crime was committed.

4. Convictions of a defendant for the off-grid offense described in either K.S.A. 21-3506 or
K.S.A. 21-3504, and the imposition of the enhanced sentencing provisions of K.S.A. 21-4643,
requires a factual finding that the defendant was 18 years of age or older. That fact
question must be submitted to the jury and proved beyond a reasonable doubt. Where the
fact of the defendant's age was neither submitted to the jury nor proved beyond a
reasonable doubt, the sentencing court is precluded from imposing the enhanced
sentencing contained in K.S.A. 21-4643.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the
cause and was on the brief for
the appellant.

Lois K. Malin, assistant county attorney, argued the cause, and John P.
Wheeler, Jr., county attorney, and
Stephen N. Six, attorney general, were with her on the brief for the appellee.

The opinion of the court was delivered by

JOHNSON, J.: Juan Jose Bello appeals his convictions and sentences for one count each
of aggravated criminal sodomy and aggravated indecent liberties with a child. The district court
imposed a hard 25 life imprisonment sentence, pursuant to K.S.A. 21-4643. Bello contends that
the district court erred by excluding evidence on the basis of noncompliance with the time
constraints of K.S.A. 21-3525; that the State failed to charge and the district court failed to
instruct on an essential element of the crimes, violating his constitutional rights; and that his
disproportionate sentence violates the Eighth Amendment to the United States Constitution and
Section 9 of the Bill of Rights of the Kansas Constitution. We affirm the convictions but vacate
the sentences and remand.

Highly summarized, the 7-year-old female victim, H.P.M., and her family were at the Bello
home for a social visit. Eventually, H.P.M. found her way to a downstairs bed, where her brother
was sleeping, while the adults were visiting upstairs. Bello made two unaccompanied trips
downstairs. H.P.M. says that during each trip, Bello entered the bedroom, turned out the lights,
pulled her pants and underwear to her knees, and both licked and touched her vaginal area. She
pretended to be asleep and her brother remained asleep during both incidents. After the second
incident, H.P.M. went upstairs and told her mother what had happened. A fight ensued and the
police responded. After initially denying the allegations, Bello ultimately admitted that he had
made contact with H.P.M.'s genitalia with his lips and tongue.

The State charged Bello with two counts of aggravated criminal sodomy and two counts
of aggravated indecent liberties with a child. At trial, Bello attempted to present evidence
suggesting that H.P.M. had been previously molested by someone else, so that his expert could
testify as to the effect of prior sexual abuse on victims. After a hearing on the motion, the trial
court excluded the evidence, partially because it fell within K.S.A. 21-3525, the rape shield
statute, and also because Bello had not complied with the 7-day notice requirement.

During deliberations, the jury requested several readbacks of testimony and asked for the
definition of "lewd or lewd manner." Bello was ultimately convicted of one count of aggravated
criminal sodomy and one count of aggravated indecent liberties with a child. The trial court
sentenced Bello under K.S.A. 21-4643, commonly referred to as Jessica's Law, which requires a
hard 25 life sentence on both counts. The court denied Bello's motion for departure.

Bello contends that the district court erred in utilizing the notice provisions of K.S.A.
21-3525 to exclude evidence of H.P.M.'s prior sexual abuse. K.S.A. 21-3525(b) prohibits
introduction of "evidence of the complaining witness' previous sexual conduct with any person
including the defendant," except as the court may specifically order admitted pursuant to a motion
"made at least seven days before the commencement of the proceeding unless that requirement is
waived by the court." Bello contends that the sexual conduct contemplated by the statute,
commonly known as the rape shield law, should not include a prior incident where the
complaining witness had been victimized. The suggestion is that the "sexual conduct" referred to
in the statute contemplates a voluntary, consensual act by the complaining witness. Therefore,
Bello argues that the rape shield statute, and its accompanying time constraints, did not apply to
the proffered evidence of H.P.M.'s prior sexual abuse.

Bello poses an interesting question of statutory interpretation, which would be subject to
an unlimited review. See State v. White, 279 Kan. 326, 331-32, 109 P.3d 1199
(2005). However,
Bello failed to raise the issue before the district court. See State v. Shopteese, 283
Kan. 331, 339,
153 P.3d 1208 (2007) (issues not raised before trial court cannot be raised on appeal).

Further, Bello appears to have invited the district court to apply the very statute that he
now claims is inapplicable. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291,
296, 64 P.3d
357 (2003) (party may not invite error and then complain of the error on appeal). In seeking
admission of the evidence ultimately excluded, Bello filed a pleading entitled "Motion to Allow
Testimony of Complaining Witness' Previous Sexual Conduct Pursuant to K.S.A. 21-3525."
Thus, contrary to his appellate argument, Bello requested that the trial court apply the provisions
of the rape shield statute and specifically identified the testimony as relating to "previous sexual
conduct." Moreover, at the beginning of the in-chambers proceeding on Bello's motion, the court
stated that the motion "has to be [under] K.S.A. 21-3525." In response, defense counsel stated,
"Yes, that will be the rape shield statute Your Honor." Bello invited the district court to consider
the admissibility of the proffered evidence under the provisions of K.S.A. 21-3525 and he cannot
now complain that the district court granted that request.

Perhaps more fundamentally, separate and apart from the ruling on the time constraints of
K.S.A. 21-3525, the district court properly excluded Bello's proffered evidence on the basis that it
lacked relevance. Bello argued that the evidence was relevant to credibility, the theory being that
H.P.M. was abused or observed another young girl being abused and transferred that experience
into making the allegations against Bello, whose physical appearance was similar to the prior
abuser. The disconnect in Bello's theory is the absence of any evidence that H.P.M. suffered the
prior trauma.

First, the assertion in Bello's appellate brief that "the district court prevented Mr. Bello
from presenting direct evidence regarding prior abuse and its effect" is belied by the record; there
was no such direct evidence. Although Bello's trial counsel asserted in opening statement that
H.P.M. had been previously abused, after the State objected, defense counsel admitted to the trial
court that "at this point in time we have no evidence that [H.P.M.] was actually abused." At that
point, the defense's contention shifted to asserting a belief that H.P.M. might have witnessed
another young girl being abused, but again, there was no direct evidence to support that
contention either.

Ultimately, the only evidence the defense had to offer was circumstantial, consisting of an
affidavit from Bello's wife that she had observed H.P.M. kissing her brother inappropriately and
dressing inappropriately and that H.P.M. had jumped on the defendant's lap one time to play a
game. Bello argued that such evidence established an inference that the prior abuse had occurred,
which was a necessary predicate for his expert's opinion on abused children. The district court
rejected the argument, stating:

"[C]onduct such as wearing . . . inappropriate clothing, jumping on . . . the defendant's lap,
kissing her brother has been described as inappropriate in the affidavit. And that, of course, in
my opinion is not sexual conduct under the terms of the statute. . . .

"Now, the Court has to decide whether or not that kind of activity can be brought
in and
subject to . . . an analysis by an expert, Dr. Hough. Dr. Hough in his affidavit doesn't address
nonsexual conduct in his affidavit other than to say that observed behavioral changes may
include greater interest in sexualized themes in conversation and play. He doesn't draw the
conclusion in his affidavit . . . that says that having had prior abuse visited upon this child may
have triggered the transference that the defense is advancing.

"Consequently I see nothing of relevance in the nonsexual conduct of this child
that
would give rise to any relevant information that can be proved to the jury in this case."

For evidence to be relevant, "'there must be some material or logical connection between
the asserted facts and the inference . . . they are intended to establish.'" State v. Reid,
286 Kan.
494, 502-03, 186 P.3d 713 (2008) (quoting State v. Gunby, 282 Kan. 39, 47, 144
P.3d 647
[2006]). Bello's evidence simply did not support a reasonable inference that H.P.M. had been
previously abused or traumatized. Without that foundation, the expert's opinion regarding the
behavior of previously abused children had no relevance. The district court correctly excluded the
evidence.

DEFENDANT'S AGE

Bello points out that neither the charging document nor the jury instructions specifically
addressed the fact that he was age 18 years or older at the time he committed the offenses, which
he contends is an essential element of an aggravated crime under K.S.A. 21-4643(a)(1).
Therefore, he argues that his conviction and sentence violated the Sixth Amendment to the United
States Constitution, Section 10 of the Kansas Constitution Bill of Rights, and the Kansas statute.

Bello bases his arguments on K.S.A. 21-4643(a)(1), which provides, subject to certain
exceptions not applicable here, that "a defendant who is 18 years of age or older and is convicted
of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of
imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years."
Among the listed crimes to which the hard 25 sentence applies are aggravated indecent liberties
with a child (K.S.A. 21-3504) and aggravated criminal sodomy (K.S.A. 21-3506), the crimes for
which Bello was convicted. Bello asserts that K.S.A. 21-4643 essentially establishes an
aggravated form of the enumerated crimes, so that a defendant being age 18 or older becomes an
essential element which must be proved for a conviction of that aggravated crime.

For the underlying principle governing this issue, Bello directs us to the holding in
Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348
(2000): "Other
than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." Bello then proffers two approaches to the omitted age problem: (1) By not alleging that
Bello was age 18 or older in the charging document, the State only validly charged Bello with
committing the lesser severity level of the offenses, requiring that we vacate the hard 25 life
sentences and remand for imposition of the appropriate Kansas Sentencing Guidelines Act
(KSGA) sentences corresponding to the crimes for which Bello was actually charged and
convicted; or (2) by omitting an essential element of the aggravated form of the crime,
i.e., the
defendant's age, the jury instructions were clearly erroneous, requiring a reversal of the
convictions and remand for a new trial.

Although perhaps immaterial to our ultimate disposition, we pause to question Bello's
characterization of K.S.A. 21-4643 as the statute which establishes the separate, "aggravated
form" of the crimes in this case. Here, the statutes defining the crimes in the first instance describe
differing severity levels and specifically set forth the fact which triggers the higher severity level,
i.e., the offender's age.

The elements of aggravated indecent liberties with a child are contained in K.S.A.
21-3504, which states in relevant part:

"(a) Aggravated indecent liberates with a child is:

. . . .

(3) engaging in any of the following acts with a child who is under 14 years
of
age:

(A) Any lewd fondling or touching of the person of either the child
or
the offender, done or submitted to with the intent to arouse or to satisfy the
sexual desires of either the child or the offender, or both; . . .

. . . .

"(c) Except as provided further, aggravated indecent liberties with a child as
described
in subsections (a)(1) and (a)(3) is a severity level 3, person felony. . . .
When the offender is 18
years of age or older, aggravated indecent liberties with a child as described in subsection
(a)(3)
is an off-grid person felony." (Emphasis added.)

Similarly, the elements of aggravated criminal sodomy are set forth in K.S.A. 21-3506,
which provides in relevant part:

"(a) Aggravated criminal sodomy is:

(1) Sodomy with a child who is under 14 years of age;

. . . .

"(c) Except as provided further, aggravated criminal sodomy is a severity level 1,
person
felony. Aggravated criminal sodomy as described in subsection (a)(1) or (a)(2), when the
offender
is 18 years of age or older, is an off-grid person felony." (Emphasis added.)

Moreover, the sentences for off-grid crimes are set forth in K.S.A. 21-4706, which
provides, in relevant part:

"(d) As identified in K.S.A. . . . 21-3504, 21-3506, . . . and amendments
thereto, if the
offender is 18 years of age or older and the victim is under 14 years of age, such violations are
off-grid crimes for the purposes of sentencing. Except as provided in K.S.A. 21-4642, and
amendments thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and
amendments thereto." (Emphasis added.)

In other words, each of the statutes defining the crimes involved in this appeal, aggravated
criminal sodomy and aggravated indecent liberties with a child, sets forth two separate levels of
the offense which can apply to the act which Bello committed: one a KSGA nondrug grid box
offense, and the other an off-grid offense. The determination of which offense applies turns on
whether the offender was age 18 or older when committing the criminal act.

The structure of the crime-defining statutes here is akin to that of the theft statute, K.S.A.
21-3701, which describes varying levels of offenses based upon the additional fact of the stolen
property's value. See State v. Stephens 263 Kan. 658, Syl. ¶ 2, 953 P.2d 1373
(1998) (degree of a
theft crime determined by the value of the property stolen); State v. Piland, 217 Kan.
689, Syl. ¶
3, 538 P.2d 666 (1975) (where value of stolen property is in issue, trial court should instruct the
jury with respect to the element of value and require a jury finding as to value). Thus,
while
K.S.A. 21-4643 reiterates the age factor which elevates the sentence for aggravated criminal
sodomy or aggravated indecent liberties with a child to a hard 25 life sentence, that
severity-enhancing factor is initially identified in the statutes defining the respective crimes.

The State responds to Bello's arguments by first arguing that its statutory citations in the
charging instrument gave Bello sufficient notice of the penalties he could face, and, therefore,
Bello was afforded adequate procedural due process. We have previously held that "[a] citation in
the complaint to the statute involved cannot substitute to supply a missing element of the charge.
[Citation omitted.]" State v. Christiansen, 258 Kan. 465, 466, 904 P.2d 968 (1995).

However, for its second argument, the State contends that Bello's age was not an element
of the offenses charged under K.S.A. 21-3504 and 21-3506, but rather it was simply "an element
in a sentencing statute," i.e., K.S.A. 21-4643. Moreover, the State asserts that Bello
"cites to no
legal authority as to why [offender's age] is an element" of the offenses. Not only does the State
ignore the explicit language of K.S.A. 21-3504 and 21-3506, discussed above, but it fails to grasp
the significance of Bello's citation to Apprendi.

In Apprendi, the Supreme Court clarified that merely because a state
legislature places a
sentence enhancing factor within the sentencing provisions of the criminal code does not mean
that the factor is not an essential element of the offense. Apprendi, 530 U.S. at 495. If
a
"sentencing factor" is used to increase a defendant's sentence beyond the maximum authorized
statutory sentence, it is the functional equivalent of an element of a greater offense than the one
covered by the jury's guilty verdict. Apprendi, 530 U.S. at 494 n.19; see Ring v.
Arizona, 536
U.S. 584, 602, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002).

"[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a
judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
[Citations omitted.] In other words, the relevant 'statutory maximum' is not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may impose
without any additional findings." Blakely v. Washington, 542 U.S. 296,
303-04, 159 L. Ed. 2d
403, 124 S. Ct. 2531 (2004).

A defendant's right to a jury trial is violated where the judge makes the sentence enhancement
factfinding, rather than the jury. See Cunningham v. California, 549 U.S. 270,
288-89, 166 L.
Ed. 2d 856, 127 S. Ct. 856 (2007).

At Bello's trial, the State presented no evidence as to his age, and the trial court did not
instruct the jury to make a finding that Bello was age 18 years or older. Therefore, based on the
facts reflected in the jury verdict, without the sentencing judge finding the additional fact of
Bello's age, the statutory maximum sentences prescribed for the crimes of aggravated indecent
liberties of a child and aggravated criminal sodomy were to be found in the KSGA nondrug
offense sentencing grid along the lines for a severity level 3 felony and a severity level 1 felony,
respectively. See State v. Gould, 271 Kan. 394, Syl. ¶ 4, 23 P.3d 801 (2001)
("A judge may not
impose a more severe sentence than the maximum sentence authorized by the facts found by the
jury."). To increase the penalty beyond that, i.e., to sentence Bello for an off-grid
offense under
K.S.A. 21-4643, the fact that Bello was age 18 years or older at the time he committed the
offense needed to have been submitted to the jury and proved beyond a reasonable doubt. See
Gould, 271 Kan. 394, Syl. ¶ 2.

Accordingly, the sentence imposed upon Bello under K.S.A. 21-4643 is vacated, and the
case is remanded for resentencing the convictions as on-grid felonies pursuant to the KSGA.
Given our decision to vacate Bello's sentence under K.S.A. 21-4643, we need not address his
contention that his sentence was disproportionate and violated the Eighth Amendment and
Section 9 of the Kansas Constitution Bill of Rights.